Morton and Repatriation Commission
[2004] AATA 328
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 328
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/262
GENERAL ADMINISTRATIVE DIVISION )
Re TERENCE MORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M Carstairs, Member Date12 March 2004
PlaceBrisbane
Decision For reasons given orally the decision under review is set aside and the Tribunal substitutes the decision that bipolar disorder and alcohol abuse are defence caused within the meaning of s70 of the Veterans’ Entitlements Act (1986), with effect from 24 February 1999. The matter is remitted to the respondent for assessment of the rate of pension payable. ….(Sgd) M J Carstairs….
Member
VETERANS’ ENTITLEMENTS – defence caused injury or disease – bipolar disorder and alcohol abuse – severe psychosocial stressor – severe stressor – decision set aside – matter remitted for assessment of pension
Veterans’ Entitlements Act 1986, s 70, 120, 120B, 196B
O’Neil v Repatriation Commission [2001] FCA 1492
Hyland v Repatriation Commission [2003] AATA 597
Repatriation Commission v Levi (1994) 61 FCR 189.
Schmid vComcare [2003] FCA 1057WRITTEN REASONS FOR DECISION
30 March 2004 Ms M Carstairs, Member 1. This is an application by Terence Morton (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB), varying a decision made by a delegate of Repatriation Commission (the respondent) rejecting the applicant’s claim to have medical conditions attributed to his defence service.
2. At the hearing the applicant was represented by Mr D O’Gorman of counsel instructed by Gilshenan and Luton, solicitors. Mr M McAninly represented the respondent.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) numbered T1-T6 as well as exhibits marked A1- A4 for the applicant and R1- R7 for the respondent.
BACKGROUND
4. The applicant is aged fifty-eight. He joined the Royal Australian Air Force at the age of fifteen on 17 January 1961 and served as an armament fitter. He served in Malaysia in two periods the first from 17 May 1967 to 14 April 1969, and the second from 20 February 1973 to 27 March 1974. He was discharged medically unfit on 15 August 1974, being diagnosed with schizophrenia at that time.
5. The parties agree that the period between 7 December 1972 and 15 August 1974 is the relevant period of service in regard to the applicant’s entitlements under the Veterans’ Entitlements Act 1986 (the Act).
6. The applicant made a claim to have paranoid schizophrenia accepted as due to his defence service on 24 May 1999. The respondent rejected the claim, as did the VRB, though the VRB varied the diagnosis, and rejected all claims based upon psychiatric conditions. The applicant sought review with this Tribunal on 27 March 2001. After the decision was handed down orally, the respondent requested written reasons by letter dated 17 March 2004.
EVIDENCE
7. In a written statement dated 28 June 2001 (exhibit A1) the applicant stated that during his first tour of duty to Malaysia he had few responsibilities but by the time of his second tour he was a non-commissioned officer with a very responsible job in charge of a gunnery range. He was responsible for directing the ground personnel by radio when to set up targets for the pilots to refine their bombing skills on the gallery range situated on an island off mainland Malaya. He said the position involved safety aspects of personnel on the range and he was very stressed and concerned for the safety of his men. The applicant gave oral evidence describing the bombing operations on the range, which he had experienced personally on his first tour of duty when he had been in the block house taking cover when the rounds being fired by the aircraft were hitting the block house. He said this encounter made him more aware on his second tour of duty of the dangers that his men potentially faced, should they be outside the blockhouse during a target practice run.
8. The applicant said that if anything did go wrong the means of communication were crude and he was at such a distance from the range site and from Butterworth where the planes were flying from, that there would be little that he could do. He said he was getting little cooperation as he was a junior NCO and he felt helpless, as though things were out of his control.
9. The applicant said that he first smoked marijuana at a party during his second tour of duty in Malaysia (stating in oral evidence that this was about November 1973) after someone told him it would help to calm his stress. He stated that marijuana was very cheap in Malaysia and he used it regularly at night when he was off duty, though only for a period of three to four months.
10. In regard to alcohol consumption the applicant said in his written statement that depression and alcohol abuse commenced in the 1980’s. In his oral evidence he said that he did not commence drinking until about the age eighteen and he was drinking heavily from about 1967, though he reduced his consumption about the time of his marriage in 1969. He said that in Malaysia there was little to do except drink and work, and there was pressure to attend social functions where consuming alcohol was the norm. He said that his consumption kept increasing. In his written statement (exhibit A2) the applicant said that increased consumption of alcohol on his second tour of duty was in response to the stress he was experiencing being in charge of the gunnery range. In his oral evidence he said that he really began drinking to excess when he left the airforce.
11. In a report dated 16 October 2001 (exhibit R2), Professor J McCarthy, a researcher with the Australian Defence Force Academy, acknowledged that his research in regard to the question of how usage of cannabis would be dealt with by the RAAF in the early 1970’s had proved difficult. He said the Australian military system not Malayan civil authorities would deal with defence force personnel who smoked marijuana and that it was only after the enactment of the Defence Force Discipline Act in 1982 a clear code was provided.
12. The service medical records (T4) included the inpatient record of admission to hospital for schizophrenia on 14 February 1974 and discharge twenty-six days later. Dr J McIntyre, specialist in psychiatry, noted the absence of a family history of psychiatric problems and stated that “recent stresses were thought to include his assumption of more responsibility at work and his acquisition of an expensive motor car which was only marginally within his means”. Dr McIntyre noted that electroconvulsive therapy (ECT) was administered with good results, but that that the applicant was regarded as unfit to continue service and he would be medivaced to Australia for assessment. In a Report headed Employment Standard Review dated 3 May 1974 (T5) the following was noted:
The diagnosis in not in doubt, and the disability is serious and permanent…he will almost certainly relapse and his clinical course for the remainder of his life will be one of relapses, following periods of improvement, with a general overall progressive deterioration.
13. In a written report dated 6 July 1999 (T4) Dr J Rogers, consultant psychiatrist, stated that the applicant reported to him that he was stressed by the demands of his work in Malaya, particularly when he was responsible for the gunnery range. The applicant told him about an incident where he had strapped in their commanding officer who was piloting a place on a mission, which failed to return, and this had had a great impact on him and on morale generally.
14. Dr Rogers stated that the diagnosis of schizophrenia made at the time of the discharge was most likely incorrect as the history suggested that the symptoms were of the onset of bipolar affective disorder. He noted that there was no family history of mental illness. Dr Rogers stated that, taking into account the lack of family history there were reasonable grounds to consider that the stress of his airforce career was related to the onset of a major mental illness on service.
15. In a written report dated 13 September 2000 (T4), Dr M Katz, consultant psychiatrist, noted the diagnoses of schizophrenia and bi-polar disorder but said that on the history there was no evidence of persisting psychotic disturbances or manic disorder. Dr Katz stated that the applicant had told him that symptoms of anxiety and depression had recurred. He diagnosed the applicant as suffering from Major Depression and alcohol abuse, both of which he considered emanated from his RAAF service. In oral evidence he said that the onset of Major Depression was about the time that the applicant was administered ECT. Dr Katz said that ECT was administered both for depression and depression with psychotic features.
16. Dr Katz stated in his report dated 13 September 2000 (T4):
It would seem that a combination of alcohol abuse and the stresses of his responsibilities in the RAAF contributed to the deterioration in his nervous health as there is no significant family history of depression and Terrence was not exposed to any sensitising or traumatising experiences that may have promoted his sensitivity to stress.
Dr Katz said in oral evidence, however, that he did not fully explore the applicant’s alcohol history.
17. In a further report dated 29 February 2002 (exhibit A3), Dr Katz elaborated that when the applicant had his breakdown in 1974 the psychotic features observed by medical practitioners may have been in the context of a manic or major depressive breakdown. In oral evidence he referred to it as a major depressive breakdown with a manic episode. He noted that ECT was used commonly at the time to treat severe depression but would not be considered appropriate today for someone who had no affective disorder. He noted also that in some sensitive individuals, marijuana could generate paranoid reactions. He considered that the applicant met the factor of having a clinically significant psychiatric condition before the clinical onset of depressive disorder.
18. Dr Katz diagnosed alcohol abuse and stated that the applicant referred to drinking more heavily in his service and was drinking to excess at the time he developed his nervous disturbances. Dr Katz said that when the applicant was seeing him in 2000 he was averaging 10 middies of full strength beer on a daily basis. Dr Katz did not consider that the alcohol abuse contributed to depressive disorder but it might have contributed to affective disturbances.
19. In oral evidence Dr Katz said that it was possible that the applicant’s depression was due to marijuana abuse.
20. In a written report dated 19 December 2002 (exhibit R6) Dr W Kingswell, consultant psychiatrist, agreed with both Dr Katz and Dr Rogers that the initial diagnosis of schizophrenia was incorrect. Similarly to those doctors, Dr Kingswell took into account the longitudinal history, which he considered was consistent with bipolar disorder. He noted that mood symptoms with episodes of depression and hypomania have come to dominate the applicant’s clinical picture.
21. In oral evidence Dr Kingswell said that diagnosis was going to be difficult in 1974 when the applicant first presented with symptoms. In preparing his report, Dr Kingswell had access to the medical reports dating from 1974 and commented that the symptoms exhibited by the applicant then were hypomanic, whereas if the condition had been depression alone the applicant would have presented with slowed thought patterns. He said that the applicant was again misdiagnosed in 1985, where on admission to hospital he was diagnosed with atypical adjustment disorder (mixed neurotic and quasipsychotic features)/personality disorder (exhibit R5).
22. Dr Kingswell said in oral evidence, that it was difficult to say what was cause and what was effect with regard to the applicant’s alcohol consumption and marijuana use at the time of the onset of his psychiatric disturbance in 1974. He said that the use of cannabis has been noted in literature as a cause of schizophrenia, and will make episodes worse, however the literature is not as clear with any connection between cannabis use and depression, though he said that patients with depression are advised against using cannabis. Dr Kingswell noted the applicant’s good response to ECT and said that the positive response to the treatment was an indicator that depression was present.
23. Dr Kingswell stated that when he interviewed the applicant he was consuming alcohol at the rate of 10 litres of home brew every three days (about 5% alcohol) with the applicant being drunk most afternoons.
CONSIDERATION OF THE ISSUES
24. Section 70(5) of the Act provides:
70(5) For the purposes of this Act,…an injury suffered…shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member…has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;…
25. For claims made after 1994, it is necessary to apply any relevant Statement of Principle (SoP). Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act:
196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or…
26. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
27. There was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction.
28. The first task is to establish that the applicant suffers from the medical conditions claimed. The applicant made no submissions in regard to schizophrenia. The respondent submitted that the diagnosis of paranoid schizophrenia should have been made on the basis of presenting symptoms. All the medical evidence was in agreement that the diagnosis of paranoid schizophrenia made in 1974 was incorrect. The Tribunal was reasonably satisfied that the applicant did not have paranoid schizophrenia and therefore that claim fails.
29. In regard to the conditions of bipolar disorder and depressive disorder, Mr O’Gorman submitted that these diagnoses were in the alternative. He submitted also that the differences in opinion between Dr Katz and Dr Kingswell were not substantial, despite the different ultimate conclusion reached on diagnosis. The reports of both doctors are in agreement about the need for a longitudinal view to be taken in order to determine the ultimate diagnosis in this case. Both doctors refer to the features present, being those of depression at times, interspersed with manic episodes. The Tribunal preferred the evidence of Dr Kingswell to that of Dr Katz. Dr Kingswell was a most impressive witness who expressed his views with firmness. He had the advantage, that Dr Katz did not, of having access to the medical reports from 1974. Dr Katz took that information only as background provided by the applicant, not through direct reference to the medical reports. Dr Kingswell therefore was in the best position to comment on the longitudinal view of the applicant’s medical history. His diagnosis is all the more specific for that, and it is consistent with the views of Dr Rogers.
30. Dr Rogers addressed the current diagnosis (1999) as bipolar I disorder most recent episode hypomanic (DSM IV Code 296.40). Dr Kingswell addressed the question of the proper diagnosis at 1974 as the first episode of bi-polar mood disorder (DSMIV Code 296.89). The SoP for bipolar mood disorder includes both the codes referred to by Dr Rogers and Dr Kingswell (ie codes 296.4 and 296.89). The SoP for depressive disorder does not include those codes. These code numbers are set out at clause 2 in the SoPs for bipolar disorder and depressive disorder and assist in confirming the correctness of the submission by Mr O’Gorman that the diagnoses of bipolar disorder and depressive disorder are exclusive of each other. Taking all the medical evidence into account the correct diagnosis for the applicant’s psychiatric disorder is bipolar disorder and the Tribunal so finds. For these reasons the Tribunal is satisfied that the VRB decision to amend the applicant’s claim to include a diagnosis of major depression was incorrect, the Tribunal being reasonably satisfied that the correct diagnosis of the psychiatric condition is bi-polar disorder.
31. In the next step, the Tribunal must ascertain the relevant SoPs in force for the conditions found. The applicable SoP for bipolar disorder is Instrument No 129 of 1996. The applicable SoP for alcohol dependence or alcohol abuse is Instrument No 77 of 1998.
32. The applicant relied on several factors within the SoPs as the bases of his claims. With regard to bipolar disorder, the applicant relied upon factors 5(a), (c), (e), (f), and (g) of Instrument No 129 of 1996. With regard to alcohol dependence or alcohol abuse, the applicant relied on factor 5(a) (b) (c) and (d) of Instrument No 77 of 1998.
33. The factors in SoP NO 129 of 1996 for bipolar disorder provide as follows:
5. The factors that must exist before it can be said that, on the balance of
probabilities, bipolar disorder or death from bipolar disorder is
connected with the circumstances of a person’s relevant service are:
(a) experiencing at least one severe psychosocial stressor within the
six months immediately before the clinical onset of bipolar
disorder; or……
(c) experiencing at least one severe psychosocial stressor within the
six months immediately before the clinical worsening of bipolar
disorder; or
(e) suffering from substance abuse involving alcohol or cocaine at the
time of the clinical worsening of bipolar disorder; or
(f) using a specified drug as identified in the specified list of drugs at
the time of the clinical worsening of bipolar disorder; or
(g) inability to obtain appropriate clinical management for bipolar
disorder
34. “Severe psychosocial stressor” is defined in that SoP as follows:
“severe psychosocial stressor” means an identifiable occurrence that
evokes feelings of substantial distress in an individual, for example, being
shot at, death or serious injury in a close friend or relative, assault
(including sexual assault), severe illness or injury, experiencing a loss
such as divorce or separation, loss of employment, major financial
problems or legal problems;
35. The definition of experiencing a severe stressor in SoP No 77 of 1998 for alcohol dependence or abuse is differently expressed, providing as follows:
“experiencing a severe stressor” means, the person experienced,
witnessed or was confronted with, an event or events that involved actual
or threat of death or serious injury, or a threat to the person’s or other
people’s physical integrity, which event or events might evoke intense
fear, helplessness or horror;
In the setting of service in the Defence Forces, or other service where the
Veterans’ Entitlements Act applies, events that qualify as severe stressors
include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii) witnessing casualties or participation in or observation of casualty
clearance, atrocities or abusive violence;
36. The factors in the SoP No 77 of 1998 for alcohol abuse were as follows:
5. The factors that must exist before it can be said that, on the balance of
probabilities, alcohol dependence or alcohol abuse .. is connected with the
circumstances of a person’s relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
(b) experiencing a severe stressor within the one year immediately
before the clinical onset of alcohol dependence or alcohol abuse;
or
(c) suffering from a psychiatric disorder at the time of the clinical
worsening of alcohol dependence or alcohol abuse; or
(d) experiencing a severe stressor within the one year immediately
before the clinical worsening of alcohol dependence or alcohol
abuse; or
37. Mr O’Gorman submitted that the applicant’s evidence regarding the stress he experience in relation to his work on his second tour of duty allowed him to meet the definitions in both SoPs in regard to stressors. In regard to the definition of experiencing a severe stressor in the SoP for alcohol abuse and dependence, he said that the applicant experienced helplessness in the face of perceived threats to others. He submitted that the clinical onset of bipolar disorder was at the time of the breakdown in 1974 and the clinical onset of alcohol abuse was most likely earlier than 1969 on the applicant’s evidence, with that evidence also supporting worsening of alcohol abuse after 1974 when the applicant left service.
38. Mr McAninly submitted that the applicant did not suffer stressors that come within the definitions provided in the SoPs and that there was nothing significant that happened to the applicant during his relevant service. He said the stressor relied upon was no more than that he felt overworked or overloaded. He submitted that the applicant was engaged merely in his day to day duties. Mr McAninly submitted in regard to the definition of “experiencing a severe stressor” in the SoP for alcohol abuse that the necessary “event” was missing, and said that the applicant’s reaction could be put no higher than that he was worried. He referred to the applicant’s evidence as showing to the contrary that he had time to attend social functions, drink alcohol, and smoke cannabis.
39. Mr McAninly submitted that factor 5(c) of the SoP for alcohol dependence or abuse could not be met because the applicant’s psychiatric disorder was not diagnosed until 1999. He submitted that clinical onset of bipolar disorder cannot be taken as an earlier date than the 1999 formal diagnosis of the condition. He submitted that the applicant’s statement (exhibit A1) that alcohol abuse and depression set in during the 1980’s should be taken as setting the clinical onset of alcohol abuse as in the 1980’s and not earlier.
40. Extensive written submissions were made by the respondent concerning the applicant’s use of marijuana and referring the Tribunal to s70(9) of the Act which excludes incapacity that has resulted from the member’s serious default or wilful act or arose from a serious breach of discipline. The Tribunal was referred to Schmid vComcare [2003] FCA 1057 as authority for the proposition that the Defence Forces take the matter of marijuana use seriously. Mr O’Gorman submitted that the evidence did not establish that the Defence Forces had any clearly defined attitude to the private use of cannabis in 1974 and submitted that Professor McCarthy’s report went no further than saying that use of cannabis was a punishable offence.
41. The Tribunal found the applicant to be consistent in the giving of his evidence. He has spoken from the earliest times in his claim about the stress occasioned to him by the duties that he had and the pressure that he felt from the potential danger to his men should anything go wrong on the range. He told his story without embellishment. The earliest medical reports in 1974 refer to the recent stresses of assumption of more responsibility at work.
42. The definition of severe psychosocial stressor in the SoP for bipolar disorder is similar to the definition of stressful event looked at by the Federal Court in O’Neil v Repatriation Commission [2001] FCA 1492. In that case North J said that the definition, which provided that a stressful event means an occurrence which evokes feelings of anxiety or stress, requires that a decision-maker look at the experience, which will be something peculiarly personal and dependent upon subjective feelings. He said that the task of the Tribunal was to determine whether it could be satisfied that the applicant actually subjectively felt anxious. He rejected the submission that a decision-maker had to make a separate (‘objective’) assessment of whether an occurrence was of such a character that it could be described as an occurrence that evoked feelings of anxiety or stress (in the present case, had feelings of substantial distress). His Honour said, at p292:
… It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. I doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.
43. Although the definition of severe psychosocial stressor in the SoP for depressive disorder is more detailed the approach in O’Neil applies. The task of the decision-maker is to be satisfied, to the relevant degree, that there was an identifiable occurrence and that the person experienced substantial distress in reaction to it. The Tribunal agrees with the submission that the examples provided in the definition are no more than that: Hyland v Repatriation Commission [2003] AATA 597.
44. The Tribunal was satisfied that the applicant had day to day responsibility for his men in what he perceived were dangerous circumstances, which he had experienced first hand. He had real concerns for his men being exposed to injury on the practice range. He felt this keenly, and the Tribunal accepts that it had the effect on him that he described in his evidence, particularly his feelings of helplessness. In his evidence the applicant said that as armourers in the RAAF they were taught to do their job 110% and he knew the reality of the dangers present. The Tribunal accepts that the applicant recognised the stress he was undergoing and tried to subdue it with alcohol and substance abuse, but in the end he broke down. He has consistently told medical practitioners that the work and the fear that he felt for his men was the thing that brought his illness on. The Tribunal was satisfied that the responsibility for his men in what he considered dangerous circumstances that were out of his control constitute an identifiable occurrence and that the circumstances evoked in him substantial distress. Dr McIntyre’s 1974 report supports the applicant’s evidence.
45. Though bipolar disorder was not diagnosed until 1999, Dr Rogers and Dr Kingswell are able to say that the diagnosis of bipolar disorder should have been made in 1974, in preference to schizophrenia. Therefore the Tribunal was satisfied, and finds, that the clinical onset of bipolar disorder was in 1974. Factor 5(a) of the SoP for bipolar disorder is met. As the clinical onset of bipolar disorder was 1974, the evidence did not support, or point to, any factors that rely on clinical worsening of bipolar disorder. That is, factors 5(c) (e) and (f) could not be met. There is no need, on the basis of the above findings, to deal with the parties’ submissions on clinical management of the psychiatric condition in 1974 (factor 5(g).
46. The Tribunal accepts the evidence of the applicant that he was abusing alcohol in the 1960’s and accepts his evidence that there was substantial peer pressure when he was serving in Malaya, to socialise where socialising involved alcohol. The Tribunal also accepted his evidence that there was little to do while overseas apart from drink and work. The Tribunal accepts that the clinical onset of his alcohol abuse was in the 1960’s and accepts his evidence (which accords with the history given to Dr Kingswell) that he drank more after his discharge.
47. The evidence, which the Tribunal accepts, points to clinical worsening of alcohol abuse shortly after discharge. Factor 5(c) of the SoP for alcohol abuse and dependence provides that alcohol abuse will be connected with the person’s relevant service where the person suffers a psychiatric disorder at the time of the clinical worsening of alcohol abuse. For the reasons above, the psychiatric disorder was connected to service. The Tribunal accepted the applicant’s and Dr Kingswell’s evidence that the psychiatric disorder occurred in 1974 at the same time as clinical worsening of alcohol abuse. Dr Kingswell pointed out that it is difficult to say which was cause and which was effect – but the factor does not require this, it requires only that the two are contemporaneous.
48. For these reasons, the evidence points to the factors of (a) experiencing at least one severe psychosocial stressor within the six months immediately before the clinical onset of bipolar disorder and 5(c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse and the Tribunal was reasonably satisfied that the applicant’s conditions of bipolar disorder and alcohol abuse were defence‑caused, within the meaning of s70(5) of the Act.
49. Section 70(9) of the Act provides as follows:
(9) The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
(a) in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in subsection (4) or in paragraph (5)(a), (b) or (c) or in paragraph (5A)(a), (b) or (c)—if the death, or the injury or disease, as the case may be:
(i) resulted from the member’s serious default or wilful act; or
(ii) arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or
50. In regard to the submission of the respondent that s70(9) applies to deny liability in this case, the Tribunal accepts the submission of Mr O’Gorman that the section is not satisfied as there is no evidence that there was a serious default or serious breach of discipline. On the evidence of Professor McCarthy, Air Force law was in a confused state prior to the formulation of the Defence Force Discipline Act (No 152 of 1982), which came into effect after the applicant was using cannabis about 1974. It is also significant, in regard to s70(9) that the use of the cannabis occurred while the applicant was off duty. Further it was not clear on the medical evidence, particularly that of Dr Kingswell, that the psychiatric injury “arose from or resulted from” the default, wilful act, or breach of discipline as required by the s70(9): Repatriation Commission v Levi (1994) 61 FCR 189.
DECISION
51. For reasons given orally, the decision under review is set aside and the Tribunal substitutes the decision that the applicant’s bipolar disorder and alcohol abuse are defence caused with effect from 24 February 1999. The matter is remitted to the respondent for assessment of the rate of pension payable.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M Carstairs, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 11 March 2004
Date of Decision 12 March 2004
Date of Written Reasons 30 March 2004Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr D McAninly, Departmental Advocate
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